Court of Appeal of Quebec

Xanthoudakis c. R.

500-10-006187-163

Savard, Roy, Sansfaçon

Application for review of a judgment rendered by a single judge dismissing a motion for interim release. Dismissed.

On June 2, 2016, a jury found the applicant guilty of fraud, forgery and using a forged document. He was given an overall sentence of 7 years and 11 months’ imprisonment, plus the victim surcharge on all counts. On March 17, 2020, his appeal from the convictions and the sentence was dismissed. On April 23, 2020, a single judge dismissed his application for interim release pending the Supreme Court’s ruling on his application for leave to appeal, filed on April 15, 2020. On May 8, 2020, the acting Chief Justice authorized the review of the judgment by a panel of the Court.

The general policy considerations and principles that apply to release pending an appeal against conviction under s. 679(3) of the Criminal Code (R.S.C. 1985, c. C-46) also apply to release in the case of an appeal or an application for leave to appeal to the Supreme Court, with the appropriate modifications to reflect the stage of the appellate proceedings. In this case, the only criterion at issue is the public interest criterion under s. 679(3)(c) Cr. C., which balances the principles of the enforceability and reviewability of a judgment.

The single judge did not commit any error of law or of principle justifying appellate intervention in deciding that the grounds of appeal raised by the applicant, without being futile according to the very low bar set in s. 679(3)(a) Cr. C., have very little value and show little chance of success. Therefore, the enforceability of judgments had to prevail over reviewability in the analysis of the public interest criterion under s. 679(3)(c) Cr. C. In this evaluation of the grounds of appeal, the judge benefitted not only from his own knowledge and experience but also from the reasons for the judgment of the Court, which unanimously rejected the applicant’s sole ground of appeal before it, i.e., that his right to be tried within a reasonable time guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I) had been breached. Moreover, the judge was right to take the stage of appellate proceedings into consideration in his evaluation of public confidence in the administration of justice.

Finally, it is worth mentioning that the role of the review panel is not to substitute its own decision for that of the single judge, but only to determine whether or not the latter’s conclusion was clearly unwarranted. In this case, given the seriousness of the crime – fraud of more than US$123 million belonging to Cinar, a publicly held company – the significant term of incarceration imposed, the weakness of the grounds of appeal and the stage of the proceedings, the single judge could reasonably conclude that the enforceability interest overshadows the reviewability interest, such that detention is necessary in the public interest.

*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca

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